The Supremacy of Congress

On the eve of the war in Iraq, Bush administration lawyers spelled out a strikingly broad view of the president’s power that freed the commander in chief and U.S. military from the federal law and international treaties that barred the use of torture.

[...]

Congress adopted an anti-torture law in 1994 that barred Americans abroad acting under U.S. authority from inflicting “severe physical or mental pain.”

But the 56-page memo on “Detainee Interrogation in the Global War on Terrorism” maintains that the president and his military commander cannot be restrained in this way.

“Congress lacks authority ... to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during a war,” the memo asserts. “Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe [the law] to avoid this difficulty and conclude that it does not apply to the president’s detention and interrogation of enemy combatants.”

The memo was dated March 6, 2003, two weeks before the start of the war in Iraq. In earlier memos, administration lawyers said the president could designate even American citizens arrested within the United States as “enemy combatants,” and thus theoretically subject them to torture.

But according to several mainstream legal scholars, this turns the Constitution on its head. The 18th century document says Congress makes the laws, and the president has the duty to carry them out.

“He shall take care that the laws be faithfully executed,” the Constitution says of the president.

Moreover, the Constitution grants Congress specific powers to set the rules in war and peace, including for captives.

“Congress shall have the power ... to declare war and make rules concerning captures on land and water ... to define offenses against the law of nations [and] to make rules for the government and regulation of the land and naval forces.”

And if Rove and Bush had their way, every author would be a federal judge.